Clients often ask us for help in dealing with difficult neighbours. The issue can be a dangerous tree, it might be drainage issues, or perhaps a disagreement over a proposed development.
One fertile area for potential dispute is where one person wishes to have rights to use the neighbour’s property, such as for access to a waterway, or where a parcel of land does not have direct access to a roadway.
In legal terms, an easement is a right enjoyed by a person with regard to the land of another.
Situations often arise where a person may need to negotiate an easement with another landowner in order to effectively use or develop their land. If they are unable to reach a negotiated agreement, the person who wants the benefit of an easement over another person’s land may apply to the Court under section 88K of the Conveyancing Act for an order imposing the easement.
It is worth knowing the checklist of issues the Court requires to grant easements. The main issues include:
a. the use of the land having benefit of the easement is not inconsistent with the public interest;
- the owner of the land to be burdened by the easement can be adequately compensated for any loss or disadvantage that will arise from the imposition of easement (usually evidenced by an independent valuation); and
- the applicant has made all reasonable attempts to obtain an easement having the same effect but has been unsuccessful.
The person applying for the orders will usually be responsible for the legal costs of the proceedings and will also be required to pay compensation (as determined by the Court) to the landowner of the land to be burdened by the easement. If a reasonable offer has been made before commencement of proceedings, a costs order could potentially be made against the party who refused to agree to the easement.